Wattigny v. Lambert

• Decision Date: 11 September 1981
• Docket Number: No. 8345,8345
• Citation: 408 So.2d 1126
• Parties: Gerard B. WATTIGNY, Plaintiff-Appellee, v. William H. LAMBERT, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1126

408 So.2d 1126

Gerard B. WATTIGNY, Plaintiff-Appellee, v. William H. LAMBERT, Defendant-Appellant.

No. 8345.

Court of Appeal of Louisiana, Third Circuit.

Sept. 11, 1981.

Rehearing Denied Oct. 26, 1981.

Writ Denied Dec. 14, 1981.

Allen, Gooch & Bourgeois, Frank A. Flynn, Lafayette, for defendant-appellant.

Armentor & Wattigny, Gerard B. Wattigny, New Iberia, for plaintiff-appellee.

Before FORET, SWIFT and DOUCET, JJ.

FORET, Judge.

Gerard B. Wattigny (appellee) brought this defamation action and, in the alternative, action for malicious prosecution. Appellee seeks to recover damages for injuries he sustained as a result of the appearance of certain defamatory allegations in a petition prepared by the defendant, William H. Lambert (appellant). The petition was filed by one of appellant's clients, William Jamall Jacob, Jr.

The trial court rendered judgment in favor of appellee at the trial on the merits. Appellant was granted a suspensive appeal from that judgment and presents the following issues:

(1) Whether the allegations of the judicial pleading, on which this defamation action is based, are protected by the First Amendment to the U.S Constitution and/or LSA-Const., Article 1, § 7;

(2) Whether appellant did in fact defame appellee, either intentionally or negligently, and thus, should be held liable to the appellee for the injuries resulting therefrom; and

(3) Whether appellant may claim the benefit of an absolute privilege, or, in the alternative, a qualified privilege to absolve himself from liability, if found liable to appellee.

Appellee has answered the appeal and presents the following issues:

(1) Whether the trial court's award of $5,000.00 in damages to appellee is inadequate and an abuse of that court's "much discretion";

(2) Whether the trial court erroneously considered appellant's ability to pay a judgment in fixing the amount of its award.

FACTS

Appellant and appellee are both practicing attorneys in the State of Louisiana. Appellee instituted this action on February 2, 1978, alleging that appellant had prepared certain pleadings, on behalf of one of his clients, which contained allegations directed toward him that were defamatory. In the alternative, appellee alleged that appellant commenced and continued certain proceedings against him, without probable cause and with malice. Thus, appellee also sought to assert a cause of action in malicious prosecution.

The allegations, alleged to be defamatory by appellee, were contained in a petition prepared by the appellant on behalf of William Jamall Jacob, Jr. (Jacob, Jr.). Appellant gave that petition to Jacob, Jr. with instructions to file it with the Clerk of Court's Office in Iberia Parish, which he did on March 1, 1976. The filing of that petition instituted the action of William Jamall Jacob, et al v. William (Willie) Jacob, et al, Docket Number 37,098, Sixteenth Judicial District Court, Parish of Iberia, Louisiana. Essentially, it was alleged in that petition that appellee had conspired with certain deputies employed by the Iberia Parish Sheriff's Department and with the father and a brother of Jacob, Jr. to have Jacob, Jr. and his purported wife, Joyce Burns Jacob (Joyce), illegally arrested and wrongfully imprisoned in the Iberia Parish jail. It was further alleged in the petition that Jacob, Jr. and Joyce were wrongfully imprisoned and detained in said jail at an exorbitant bail figure, set and obtained at the instance of appellee, among others.

The above mentioned proceeding was terminated in favor of appellee when the trial court granted appellee's motion for summary judgment and dismissed the action of the petitioners therein with prejudice on November 8, 1977. No appeal was taken from that judgment. Appellant filed a motion to withdraw as counsel of record for those petitioners on February 17, 1978, approximately two weeks after appellee instituted this defamation action against him. However, appellant alleged in his motion that his representation had terminated on October 14, 1977.

A trial on the merits was held on appellee's action and the trial court took the case under advisement. The trial court then rendered judgment in favor of appellee and against appellant, awarding appellee $5,000.00 in damages. Appellant was granted a suspensive appeal from that judgment.

CONSTITUTIONAL PROTECTIONS

Appellant contends that statements or allegations set forth in judicial pleadings prepared by an attorney acting in good faith and based on the representations of his client are protected by the First Amendment to the U.S. Constitution and LSA-Const., Article 1, § 7. Appellant argues that this protection extends to statements or allegations which are defamatory. We disagree.

Appellant cites the decision of the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 686 (1964) in support of his contention. The U.S. Supreme Court, in New York Times v Sullivan, supra, noted that it was required in that case, "... to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct." See 376 U.S., at 256, 84 S.Ct., at 713. New York Times, supra, then went on to set the constitutional standard for cases of this type and stated that, "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." See 376 U.S., at 279, 280, 84 S.Ct., at 725, 726.

We find New York Times, supra, to be clearly inapposite to the issues before us for the following reasons: First, New York Times, supra, was an action brought by a "public official", rather than by a private individual such as appellee. Second, one of the defendants in New York Times, supra, was a member of the news media, rather than a private individual such as appellant. Finally, the allegedly defamatory statements upon which the action in New York Times, supra, was based were directed towards the official conduct of a public official rather than the conduct of a private individual.

The next case cited by appellant in support of his contention is the decision of the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed. 789 (1974). The principal issue in Gertz was "... whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements." See 418 U.S., at 332, 94 S.Ct., at 3003. Gertz found that plaintiff therein was neither a public official nor a public figure and rejected defendant's argument that the "New York Times" standard was applicable to that action. In rejecting that argument, Gertz stated that, "... we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them." See 418 U.S., at 343, 94 S.Ct., at 3008.

Gertz gave the following reasons for its decision. First, public officials and public figures usually enjoy a significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Therefore, private individuals are more vulnerable to injury and the state interest in protecting them is correspondingly greater. Second, a public official or public figure must accept certain necessary consequences of their involvement in public affairs, and they run the risk of closer public scrutiny than might otherwise be the case. Third, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to an increased risk of injury from defamatory falsehood concerning them. Finally, a private individual has relinquished no part of his interest in the protection of his own good name and has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood.

It was for these reasons that Gertz concluded that, "... the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual." See 418 U.S., at 345, 346, 94 S.Ct., at 3009, 3010. Gertz held that in cases involving actions brought by private individuals to recover damages for injuries resulting from defamatory falsehoods, the constitutional standard was that, "... so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." See 418 U.S., at 347, 94 S.Ct., at 3010. (Emphasis provided.)

The Louisiana Supreme Court, in Mashburn v. Collin, 355 So.2d 879 (La.1977), had before it a defamation action brought by the owner of a restaurant against the author of a newspaper column. Plaintiff in Mashburn sought to recover damages for humiliation, injury to professional reputation and loss of business allegedly caused by the publication in the column of an article derogatory of the restaurant's food. Mashburn stated, on page 885:

"We conclude, therefore, that the First Amendment freedoms as defined by the New York Times-Gertz series of decisions afford, at the very least, a defense against defamation actions for expressions of opinion about matters of public concern made without knowing or reckless falsity. Thus the Supreme Court appears to have drawn an important distinction between...